You know the drill: illegal reentry case, defendant had a prior New York conviction for second degree kidnapping, district court found it to be a crime of violence for purposes of the 16-level enhancement under U.S.S.G. §2L1.2(b)(1)(A)(ii) (kidnapping is an enumerated COV), and defendant appealed.

This isn't the first time the Fifth Circuit has addressed generic kidnapping in a published opinion. In United States v. Gonzalez-Ramirez, the court held that a Tennessee conviction for attempted kidnapping fit within the generic offense definition, after analyzing the differences and similarities among the Tennessee statute, the Model Penal Code's kidnapping/restraint provisions, and the parallel statutes of other states. Gonzalez-Ramirez provided limited guidance for other cases, though, because it never really provided a defintion of generic kidnapping.

Iniguez-Barba fills in that gap. It relies almost entirely on Gonzalez-Ramirez's discussion of kidnapping, but goes a little further by expressly saying that you'll have generic kidnapping if three elements are present:

(1) knowing removal or confinement;

(2) substantial interference with the victim’s liberty; [and]

(3) (a) force, threat, or fraud, or (b) if the victim is incompetent or under age thirteen, lack of consent from the person responsible for the general supervision of the victim’s welfare[.]

New York's second degree kidnapping statute had all those elements, so it was generic kidnapping. And because the court held that the offense qualified as an enumerated COV, it did not address the question of whether it might also qualify as a COV under the force-element prong of the definition.

One last thing: as it has in many recent COV cases, the court said it was employing a "common sense approach." But unlike some of those other cases, the court's analysis here is indistinguishable from the Taylor/Shepard categorical approach.

Prior 922(g) Conviction Inadmissible Under 404(b) In Later FIP Trial Where Only Question Was Actual Possession, Not Constructive Possession

Here's a good 404(b) opinion that you'll probably want to keep handy in your trial notebook.

Jones was on trial for being a felon-in-possession. The district court allowed the government to introduce evidence of Jones's prior FIP conviction on the grounds that it was relelvant to knowing and intentional possession of the firearm and to rebut any claim of accidental or mistaken possession. Jones was convicted, and he appealed.

The court of appeals held that it was error to admit the prior FIP conviction as 404(b) evidence because the evidence at trial would not have supported a finding of construtive possession; the jury could only have found Jones guilty if it found that he actually possessed the firearm. The difference between constructive and actual possession was critical, because of the differing elements:

In constructive possession cases, knowledge and intent are frequently at issue. A defendant will often deny any knowledge of a thing found in an area that is under his control (e.g, a residence, an automobile) or claim that it was placed there by accident or mistake. The government then must offer evidence to prove that the defendant (1) knew that the thing was present, and (2) intended to exercised dominion or control over it.

In contrast, the only knowledge that the government must show in an actual possession prosecution is the defendant’s awareness that (1) he physically possesses the thing, and (2) the thing he possesses is contraband. Intent is not an element of actual possession under § 922. More to the point in this firearms case, once the government has shown that the defendant had a firearm under his immediate physical control, any contention that he did not know the nature of what he possessed is effectively precluded.

Since intent was not an issue, Jones' prior FIP conviction was not relevant to any legitimate 404(b) purpose. And since the evidence didn't pass the first step of the Beechum 404(b) analysis, there was no need to move on to the second step and do the 403 balancing. Because the district court abused its discretion in admitting the evidence of the prior conviction, the court of appeals vacated Jones' conviction.

This opinion is tied pretty closely to the elements of actual and constructive possession under the FIP statute, but you may be able to use the reasoning in other contexts. And it's also useful for its extended discussion of when constructive possession may be on the table.

Generic "Burglary of a Dwelling" Does Not Include Entries Into Curtilage; Requires Entry Into Dwelling Itself

Yet another COV opinion, again involving the COV definition applicable to the 16-level enhancement under U.S.S.G. §2L1.2(b)(1)(A)(ii). This time the question is whether the defendant's Florida burglary conviction constitutes generic "burglary of a dwelling," an enumerated COV.

The answer: no.

Why? Florida's burglary statute prohibits entries into a dwelling's curtilage. The court concludes "that the 'ordinary, contemporary, common meaning' of 'burglary of a dwelling' does not extend to the grounds around the dwelling, but actually requires unlawful or unprivileged entry into, or remaining in, the dwelling itself. Because the curtilage is the grounds around the dwelling and not the dwelling itself, we cannot hold that Gomez was convicted of the enumerated offense of 'burglary of a dwelling.'" (citations omitted).

Hernandez, a Mexican citizen, was on (presumably non-reporting) supervised release for a drug offense. About a year-and-a-half after his deportation, he illegally reentered the United States and found work at a mattress factory in Chicago. He was later arrested for shoplifting and released on bond. While on bond he was detained during a traffic stop, and the U.S. Probation Office was notified. Hernandez was not prosecuted for theft or illegal reentry in Illinois. Instead, the Government sent him to Texas for revocation proceedings.

Here's what happened next:

At the revocation hearing, Hernandez appeared before the same judge who had granted him a significant downward departure in his cocaine possession sentence, and he pleaded true to the three violations. The court expressed displeasure that Hernandez had blatantly disregarded the provisions surrounding his supervised release and that the prior sentence had not deterred his criminal activity. The court also expressed frustration with the failure of the U.S. Attorney’s office in Chicago to prosecute Hernandez, and others similarly situated, for illegal reentry into the United States, instead sending them to the Southern District of Texas for revocation proceedings. After discussing with counsel Hernandez’s violations, the prior downward departure, and the lack of an illegal reentry prosecution, the court inquired what the Guidelines sentence for illegal reentry would have been. The Probation Officer advised the court that Hernandez would have faced forty-six to fifty-seven months imprisonment had he been prosecuted in Illinois for illegal reentry. Concluding that the revocation Guideline of four to ten months did not adequately address this type of violation and that the prior sentence had served as an insufficient deterrent, the court sentenced Hernandez to forty-six months —significantly above the Guidelines range but well below the statutory maximum of five years for revocation.

(emphasis added). Hernandez appealed, naturally arguing "that he was impermissibly sentenced for his uncharged illegal reentry rather than for his underlying drug offense, and that his sentence is thus unreasonable, plainly unreasonable, and an abuse of discretion."

The court disagreed. It first held that Hernandez failed to preserve any claim of error, thus subjecting him to plain error review. The court held that Hernandez's request for a sentence at the low end of the advisory guideline revocation range was insufficient to preserve the specific legal errors he raised for the first time on appeal because it left the district court without the opportunity to clarify whether it was basing the sentence on its disagreement with the Government's exercise of prosecutorial discretion or on Hernandez's failure to abide by the law while on supervised release.

The court then discussed whether a revocation sentence is subject to Booker's reasonableness standard of review, or the pre-Booker "plainly unreasonable" standard. But it didn't decide that issue one way or the other (although the panel suggests strongly that its the latter), because it held that Hernandez could not show plain error under either standard:

Although the district court expressed displeasure at the Government’s failure to charge Hernandez with illegal reentry, it is not evident that it based his sentence on that ground; it is equally or more plausible that the court based his sentence on the fact that it gave Hernandez a significant downward departure in his original sentence. Thus, if there was any error, it is not plain. Because Hernandez did not object at sentencing and give the court an opportunity to clarify itself, we are unable to conclude that the court based his sentence on an impermissible factor. Moreover, that the forty-six month sentence is significantly below the statutory five-year maximum on revocation strongly counsels against its being held reversible on plain error review.

That's a troubling conclusion. Putting aside the question of whether any error was plain, it sure looks like the district judge was punishing Hernandez for the uncharged illegal reentry, and that the district court's decision to do so stemmed from its disagreement with the Government's exercise of prosecutorial discretion. That raises significant due process and separation of powers concerns (not to mention the likely venue problem given the fact that Hernandez was found in Illinois). And is a 46-month sentence really "significantly below" a 60-month statutory maximum? That would be a minor complaint, but for the fact that the court concludes that the extent of the deviation from the maximum "strongly counsels" against there being plain error.

But beyond that, the court's view of what is happening in a supervised release revocation appears to be at odds with that of the Supreme Court. In the course of discussing the reasonable-vs.-plainly-unreasonable issue, the court cites with approval a Fourth Circuit case that relies on a Chapter 7 policy statement for the proposition that "[t]he goal of a revocation sentence is to punish the defendant for the violation of supervised release, not the underlying offense." That line is a little ambiguous, but it sounds contrary to the Supreme Court's characterization of what happens in a supervised release revocation:

[One view considers a revocation of supervised release to be a punishment for the violation of the terms of release.] While this understanding of revocation of supervised release has some intuitive appeal, the Government disavows it, and wisely so in view of the serious constitutional questions that would be raised by construing revocation and reimprisonment as punishment for the violation of the conditions of supervised release. Although such violations often lead to reimprisonment, the violative conduct need not be criminal and need only be found by a judge under a preponderance of the evidence standard, not by a jury beyond a reasonable doubt. Where the acts of violation are criminal in their own right, they may be the basis for separate prsosecution, which would raise an issue of double jeopardy if the revocation of the supervised release were also punishment for the same offense. Treating postrevocation sanctions as part of the penalty for the intial offense, however (as most courts have done), avoids these difficulties.

Johnson v. United States, 529 U.S. 694, 700 (2000) (emphasis added, citations omitted). That view of revocation would weigh in favor of finding error, if not plain error, in this case.

So can a district court base a revocation sentence on its disagreement with the Government's charging practices, and effectively convict a releasee of a crime with which he's never been charged in a proceeding that lacks many of the critical substantive and procedural protections afforded defendants in criminal trials? I think not, but one thing's for sure: you don't want to have to argue that it's plain error.

Aggravated Recklessness Not Required for Generic Aggravated Assault; Garden-Variety Recklessness Will Do

It's COV time again. This time the question is whether a conviction under Tennessee's aggravated assault statute qualifies as a crime of violence for purposes of the 16-level enhancement under U.S.S.G. §2L1.2(b)(1)(A)(ii). The court of appeals, in a flawed opinion, answers "yes."

The issue here turns on whether the Tennessee offense is the equivalent of generic aggravated assault, which is an enumerated COV. The focus winds up being on differences in the least culpable mental states required for the Tennessee and the Model Penal Code versions of aggravated assault (which isn't exactly the right question, as I'll explain later). The Tennessee statute allows for a conviction where the defendant acted recklessly. But mere recklessness isn't enough for aggravated assault under the MPC. Instead, the least culpable mental state required under the MPC is a form of aggravated recklessness: acting "recklessly under circumstances manifesting extreme indifference to the value of human life."

The argument, therefore, is that because the Tennessee statute allows for conviction on proof of a lesser mental state than the minimum required for the generic offense, it isn't generic aggravated assault. It's an excellent argument, and it is correct. Unfortunately, the court of appeals disagreed. It held that what it referred to as "minor" differences in the required mental states didn't make any difference, and that the Tennessee statute otherwise fits within the ordinary, contemporary, and common meaning of aggravated assault because it uses the typical aggravators (use of a weapon or causation of serious bodily injury).

There are two significant flaws in the court's analysis. The first is that it uses a "common-sense approach" to decide the issue, rather than the Taylor-Shepard categorical approach. (See this post for a discussion of the case that Mungia-Portillo cites for this point, and this post for some Ninth Circuit criticism of the common-sense approach.) As it has in past cases, the court doesn't clearly explain what the difference is between the two approaches, but if the application is any indication the common-sense approach appears to be far less rigorous than the categorical approach.

The second flaw in the court's reasoning is that is glosses over the critical difference between the degree of recklessness required under the Tennesee and generic aggravated assault definitions, and fails to consult all of the relevant sources for determining what the generic offense definition is in the first place. Here's what the court said (shorn of citations):

We have held that a prior statute of conviction need not perfectly correlate with the Model Penal Code; “minor differences” are acceptable. As a result, the fact that the Tennessee statute defines “reckless” differently than the Model Penal Code is not fatal, and we find this difference in definition to be sufficiently minor. LaFave’s treatise makes no special note of the degree of the mental culpability typical of an aggravated battery, and neither does Black’s Law Dictionary. We infer from this that a defendant’s mental state in committing an aggravated assault, whether exhibiting “depraved heart” recklessness or “mere” recklessness, is not dispositive of whether the aggravated assault falls within or outside the plain, ordinary meaning of the enumerated offense of aggravated assault.

Of course, what the court refers to as a "minor" difference in mental states is the difference between conduct that would be an aggravated assault and conduct that would not. And how can the court infer from LaFave's and Black's silence on this point that mental state doesn't matter? Moreover, the MPC, LaFave, and Black's are only some of the sources relevant to divining the generic definition of an offense. The best way to do that is to conduct a survey of all the different U.S. jurisdictions to see if a consensus emerges on a generic offense definition (or find a helpful law review article that's already done the spade-work for you). But the court declined to do so: "Determining that this discrepancy in the definition of 'reckless' does not remove the Tennessee statute from the plain, ordinary meaning of aggravated assault, we decline to exhaustively survey all state codes." But that begs the question. How can you know what the plain, ordinary definition of an offense is until you've consulted the various definitions that states have actually adopted?

Still, that's where we are right now. Structure your arguments accordingly.

Sanchez was one of the defendants in the case where nineteen aliens died in the back of a tractor-trailer near Victoria, Texas. She pled guilty to one count of conspiring to transport illegal aliens. The stipulated factual basis for her guilty plea "stated that Sanchez, working in conjunction, and at times at the direction of co-conspirators, was responsible for a number of activities to promote, facilitate, and support the smuggling of undocumented aliens from South Texas, to and through the Houston, Texas area.”

When it came time to calculate the recommended guideline sentencing range, the district court applied enhancements under U.S.S.G. §2L1.1 for the number of aliens involved, reckless endangerment, and the death of at least one of the aliens. The resulting guideline range, after an adjustment for acceptance of responsibility, was 57 to 71 months.

However, the district court varied from the advisory guideline range on the grounds that 1) although Sanchez "was apparently known as someone who would assist people with smuggling[,]" this was "her only significant contact with the criminal justice system[,]" and 2) because there were multiple overlapping conspiracies involved in the case, the deaths of the nineteen aliens, as well as other aggravating factors, weren't reasonably foreseeable to Sanchez. For those reasons, the court initially imposed a 30-month sentence. After Sanchez told the court that she had already been in custody for 33 months pending the disposition of the matter, and after the U.S. Marshal told the court that Sanchez could be released immediately only if the court imposed a time-served sentence, the court sentenced Sanchez to time-served.

The government appealed the sentence. (Not a surprise, given the notoriety of the case.) The court of appeals reversed. (Also not a surprise, given the pattern of reasonableness review in our circuit.) It held that the sentence was unreasonable because 1) the district clearly erred in finding that there were multiple conspiracies involved and that the deaths were reasonably forseeable to Smith, 2) the district court's conclusion that Sanchez couldn't have foreseen 19 deaths was an improper basis for a non-Guideline sentence because the 2L1.1 death enhancement already took the death factor into account, 3) the district court failed to give sufficient weight to Sanchez's history and characteristics, i.e. her history of alien smuggling, and 4) the 42% reduction from the low end of the advisory range (what the court tellingly refers to as "the Guideline minimum") "would create significant disparity between Sanchez and other defendants with similar criminal histories convicted of similar criminal offenses."

I'm sure reasonable minds could differ about an appropriate sentence in this case, but is the sentence really unreasonable as a matter of law? This looks more like an instance of the court of appeals substituting its judgment for that of the district court (and from a very Guideline-centric perspective, no less). There's also the usual caveat: we'll see if the Fifth Circuit's approach to reasonableness review survives the Supreme Court's decisions in Rita and Claiborne, which shouldn't be more than a couple of months away at this point.

Tuesday, April 17, 2007

As Howard Bashman reports, the Fourth Circuit held yesterday that in order to qualify as a "misdemeanor crime of domestic violence" for purposes of 18 U.S.C. § 922(g)(9), the domestic relationship required by § 921(a)(33)(A)(ii) must be an element of the predicate offense. The case is United States v. Hayes, No. 06-4087 (4th Cir. Apr. 16, 2007), and you can read a more complete summary of the opinion over at the Fourth Circuit Blog.

Note that the Fifth Circuit has held otherwise. United States v. Shelton, 325 F.3d 553 (5th Cir. 2003). And so has every other circuit to have previously addressed the question, according to the Hayes dissent. You know what that means: circuit split. So you might want to preserve the issue in the event that it piques the interest of the Supreme Court.

TX Conviction for Delivery of a Controlled Substance Not a §2L1.2 DTO, If Conviction Could Have Been Based on an "Offer to Sell"

When is a prior conviction for delivery of a controlled substance not a prior "drug trafficking offense" for purposes of the enhancements under U.S.S.G. §2L1.2? When the prior offense could have been commited by merely offering to sell a controlled substance, conduct which falls outside the applicable definition of "drug trafficking." The Fifth Circuit so held in United States v. Garza-Lopez, a case involving one of several California controlled substance statutes that encompass a rather broad set of conduct, much of which does not constitute §2L1.2 DTO.

The same issue cropped up here in Gonzales, an illegal reentry case in which the defendant received a 16-level DTO enhancement on the basis of a prior Texas conviction for delivery of a controlled substance. The applicable statute, Tex. Health & Safety Code § 481.112, prohibits manufacturing, delivering, or possessing with intent to deliver a controlled substance. A separate statute, Tex. Health & Safety Code § 481.002, defines "deliver" to include the actual or constructive transfer of a controlled substance, as well as an offer to sell a controlled substance. Under Garza-Lopez the offer-to-sell alternative is not a §2L1.2 DTO, and Gonzales' prior delivery conviction therefore did not necessarily qualify for the DTO enhancement.

Of course, since actual or constructive transfer of a controlled substance would be a DTO, the court took a gander at the charging papers and so forth from Gonzales' prior conviction to see if they pared down § 481.112 to one of those two DTO alternatives. The state indictment alleged all three statutory alternatives conjunctively (actual transfer AND constructive transfer AND offer to sell), and the jury instructions informed the jury that Gonzales was charged with "delivery" and that an offer to sell can constitute delivery. Texas law allows conjunctive pleading and disjunctive proof, so "even though the indictment charged Gonzales with actually transferring, constructively transferring, and offering to sell a controlled substance, the jury could have convicted him based on an offer to sell alone." "Because the indictment and jury instructions permitted the jury to convict Gonzales for behavior that does not constitute a drug-trafficking offense (i.e., offering to sell a controlled substance)," the Government failed to carry its burden on the DTO issue and the district court erred in applying the DTO enhancement.

This case is important not only because it's common to see 1326 cases with Texas delivery priors, but also because it serves as an important reminder that you can't stop with the statutory or common-law offense definition when determining whether a prior conviction qualifies as a "drug trafficking offense" or a "crime of violence" or whatever. Many terms, even seemingly straightforward terms like "deliver," may actually be defined terms, and those definitions may not track the everyday or dictionary definitions of the term. Finding those definitions can be tricky because they're not always in the same statute that defines the offense, sometimes they're not even close-by in the code, and sometimes they're not even defined in statutes at all and you have to look to definitions in case law. But here's a handy tip that Westlaw users can employ to unearth those elusive defintions: use the words & phrases field restrictor in your terms and connectors search. For example, to find out if Texas defines the term delivery, use this term in your search: WP(deliver!). It'll find every instance in which that term is defined, and works in statutory and case law databases. (I assume Lexis has a similar search ability.)

Fives Hold Defendant's Deportation Renders Sentencing Appeal Moot

Does deportation moot a sentencing appeal? Until now, the answer to that question in our circuit appeared to be "no," at least as long as the defendant is still subject to some sanction imposed as part of the overall sentence (such as if he's serving a non-reporting term of supervised release, and faces the possibility of revocation should he return to the United States prior to the expiration of his TSR). Enter Rosenbaum-Alanis, which muddies the waters on the issue, and also raises troubling questions about whether there will be an entire category of sentences that are effectively insulated from appellate review.

The mootness question cropped up recently in the Supreme Court's disposition of a couple of cases asking whether a state felony drug conviction qualifies as an "aggravated felony" under the INA if the identical offense would only be punishable as a misdemeanor under the federal Controlled Substances Act. In Lopez v. Gonzales, an immigration case, the Court answered that question "no." At the same time, the Court DIG'ed the companion case of Toled0-Flores v. United States, which presented the same question in the context of an appeal from a criminal conviction for illegal reentry. The Court didn't explain the DIG, but it likely had to do with a mootness question lurking in the case due to the fact that the defendant had been deported by the time the Supreme Court heard the case.

Which brings us to a would-be beneficiary of Lopez: Mr. Everardo Rosenbaum-Alanis. Rosenbaum pled guilty to illegal reentry, and had an aggravated felony enhancement applied at the time of sentencing on account of his prior state felony conviction for possession of marijuana. He appealed the aggravated felony determination, the Fifth Circuit affirmed on the basis of then-controlling precedent, Rosenbaum filed a cert petition, and the Supreme Court GVR'ed for reconsideration in light of Lopez. By that time Rosenbaum had served out his term of imprisonment and been deported to Mexico, although he was still subject to a non-reporting term of supervised release.

But according to the opinion here, Rosenbaum doesn't get the benefit of the Supreme Court's correction of the Fifth Circuit's erroneous construction of the aggravated felony definition because his case is now moot:

Because the defendant has been deported to the Republic of Mexico and is legally unable, without permission of the Attorney General, to reenter the United States to be present for a resentencing proceeding as required by Rule 43, there is no relief we are able to grant him and his appeal is moot.

Rosenbaum argues that this court’s decision in United States v. Lares-Meraz compels a contrary conclusion. In Lares-Meraz, the defendant, like Rosenbaum, was released and deported during the pendency of his appeal, while remaining subject to an unexpired term of supervised release. The panel in Lares-Meraz concluded that the case was not moot because of this remaining term of supervised release. The panel, however, was not faced with the prospect of resentencing the defendant because defense counsel conceded that any sentencing error was harmless. The panel therefore affirmed the sentence.

Lares-Meraz does not control this case. By conceding that any error which formed the basis for his appeal was harmless and presenting no argument that militated against affirming the sentence, the defendant in Lares-Meraz did not seek any relief that the court could not grant. By contrast, in this case, the defendant, who is barred from entering the United States and who therefore cannot be resentenced, requests relief which we are unable to grant.

Interestingly, the opinion suggests by negative implication that there's a way in which a live controversy might remain, notwithstanding the defendant's deportation:

We further reject defense counsel's argument that the possibility of obtaining a waiver of the defendant's presence at the sentencing hearing compels remand. No waiver has been presented to this court and the possibility of a future waiver is speculative.

Of course, there's no telling how the court will resolve that question once it presents itself. But let's go ahead and talk about the elephant in the living room: if an appeal remains moot notwithstanding a defendant's waiver of his right to be present at resentencing, then doesn't that mean a non-trivial percentange of sentences in federal court will escape appellate review?

Here's why: 1) Illegal reentry prosecutions represent one of the two or three largest categories of criminal cases in federal court. 2) Illegal reentry cases also account for a large number of sentencing appeals, due to the inordinately complicated and arcane enhancement scheme found in the illegal reentry guideline (see, e.g., the large number of posts on this blog summarizing cases that resolve COV questions under U.S.S.G. §2L1.2). 3) Combine #1 and #2 with a) the average time it takes for cases to make their way through the district court, b) credit for time served pending #1, and c) the average time it takes for cases to wend their way through appeal, and notwithstanding the harshness of §2L1.2 you have more than a few defendants who serve their sentences and get deported before their appeals get resovled.

If the deportation makes these cases moot, regardless of a defendant's Rule 43 waiver, then that effectively means that many of the issues involving 2L1.2 enhancements will rarely, if ever, be resolved by the court of appeals. Given that appellate review is a key feature of the Sentencing Reform Act, and that the absence of appellate guidance on recurring guideline application issues could very well lead to unwarranted sentencing disparities, that simply can't be the right result. Let's hope Rosenbaum-Alanis isn't the last word on this issue.

Friday, April 06, 2007

A Peek At the Government's Computer Crime Playbook

The Justice Department's Computer Crime and Intellectual Property Section recently published a new manual, "Prosecuting Computer Crimes," that explains most of the federal computer crime statutes and analyzes sentencing and jurisdictional issues as well. I disagree with some of the positions adopted in the manual, but it's a very useful resource for those wanting to get started in the field. It's also essential reading if you're a defense attorney in a federal computer crime case and you want to know what positions the government is likely to adopt.

Wednesday, April 04, 2007

How to Deal with Anders Brief Where Client Instructs You to Appeal Sentence Only, Not Guilty Plea

Here's an interesting question: Your indigent client, whom you've been appointed to represent, wants to appeal. He instructs you to appeal his sentence only, and not to challenge his guilty plea. You conclude that there are no non-frivolous issues pertaining to the sentence, and accordingly file an Anders brief. But must you also Anders-brief any potential issues relating to the guilty plea, notwithstanding your client's instructions not to challenge his plea?

Answer per Garcia:

We are persuaded that the Prado-Prado/Jones approach to this problem is a sensible one. Read together these cases at least implicitly require the record to reflect confirmation of the defendant’s request that counsel forego any challenge of his guilty plea before counsel can pretermit consideration of the plea in his Anders brief. Requiring that the record demonstrate a defendant’s agreement or acquiescence in foregoing an appeal on this issue, enables us to determine from the record that the decision was the defendant’s own - that is, “the client has ‘suggested, acquiesced in, or concurred with’” the decision. What form must this agreement or acquiescence take? Certainly a defendant’s response to counsel’s Anders brief such as the one filed by Prado-Prado raising issues unrelated to the plea without questioning any plea related issue would qualify. Also, a written statement by the defendant that after receiving the advice of counsel he does not wish to challenge his guilty plea would qualify. Additionally, counsel's recommendation in writing to the defendant that he forego a challenge to the guilty plea and the defendant's failure to respond to this recommendation after a reasonable lapse of time after defendant's receipt of the recommendation (approximately 30 days) may be sufficient.